Arbitrary and capricious

At the public comment portion of the UDC meeting on February 3, Barbara Arrindell of Damascus Citizens for Sustainability (DCS) asked Delaware River Basin Commission (DRBC) representative Clarke Rupert whether the agency considers public comments on proposed rulemakings to be “just an annoyance,” or whether it actually takes them into account in its final decisions. She cited the example of the Stone Energy water withdrawal, in which the preponderance of public comment was opposed, but the agency permitted the withdrawal anyway. Rupert, while quick to say that all the comments are reviewed, said he can’t speak for the commission as to whether any particular suggestions will be reflected in the commission’s final decisions.

Can government agencies create regulations by just posting a notice, receiving comments and then ignoring them? In one recent case, a court ruled “no.” A federal district court vacated the Department of Energy’s (DOE) designation of National Interest Electric Transmission Corridors (see page 3), and one of the two grounds cited was the agency’s failure to develop its electric congestion study “in consultation with” the states. The DOE issued a notice and collected comments from the public—including the states—but completed most of the study before there was an opportunity for input, and subsequently created the final NIETC designations without showing that it had taken that input into account. That’s not consultation, ruled the court, and threw out the designations.

To be sure, the DRBC case is not a direct parallel. “Consultation” requires a stricter standard of action than notice-and-comment procedure, and, unlike the DOE case, there is no specific statute requiring that the DRBC “consult,” in this strict sense, with anybody regarding its rulemaking on natural gas drilling. However, there is another recourse, which we find in the recent suit of the DCS challenging the DRBC’s decision to grandfather exploratory natural gas wells in Wayne County. It employs an essential concept in administrative law called the “arbitrary and capricious” test.

In explaining what this standard means, the court in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971), wrote, “the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” DCS is arguing that the DRBC’s decision to grandfather exploratory wells did not take into account “relevant factors” including evidence of environmental and other damage that can be caused even by vertical drilling.